Copyright Insurgency

Do the beans justify the ends?

Jon Lech Johansen is a nineteen year old Norwegian who has become something of a hero in the hacker community. Instead of playing football or catching salmon, he created a computer program that cracked the codes protecting DVD films from illegal copying. Why did he do this? Because the protection codes in DVDs allow them to be viewed only on one computer, not many. What did he do? He posted his program ‘DeCSS’ on the Net. Now as you can imagine, this really raised the hackles of the Motion Picture Association of America and the US DVD Copyright Control Association. As was to be expected, they took him to court in Oslo. But against all expectations – they lost the case. Why? Because the court in Oslo maintained that ‘DVD John’ could not be punished for breaking into his own property. They maintained that there was no credible evidence to prove that others had used this programme to produce or watch pirated films. Furthermore the court ruled that consumers who buy legal DVDs do have access to its content.

Bill Gates, reportedly the richest person on earth, is worried about Microsoft’s revenue losses from piracy. And so Microsoft has launched a global anti-piracy drive that is said to have had some success. In November 2001, a ship was seized in the Port of Los Angeles that had arrived from Taiwan containing $100 million worth of illegal software – mainly copies of Microsoft and Symantec programmes – the largest haul of its kind by US Customs. However, counterfeiters remain smart cookies. In fact their products have even been found in law enforcement offices in Silicon Valley!! Microsoft’s new operating system Windows XP and Office XP use a system called ‘product activation’ that requires users to log on to the internet or phone in for the program to work. It limits the number of times a programme can be downloaded from the CD. But the rumour is that the activation code was broken even before the launch of Windows XP in the Autumn of 2001!

Some people seem to enjoy messing around with Hollywood. 321 Studios, a software company in St. Louis, Missouri, has been taken to court by the big Hollywood studios for creating a program that helps people make ‘archival back-ups’ of DVDs. 321 has argued that consumers have the right to back up their discs. Hollywood, to its dismay, has discovered, that even the most draconian, unconstitutional bill, the 1998 Digital Millennium Copyright Act, says nothing about the legality or illegality of taking copies of DVDs. 321 has also argued that its software, DVDXcopy, does not unscramble the protection codes built into DVDs. “DVDXcopy works by intercepting the digital video code just after it has been legitimately unscrambled by the DVD player, but just before the unscrambled code is converted into a protected analogue TV signal. It then saves the unscrambled video on the PC’s hard drive before copying it onto a blank DVD”*. Copyright law says nothing about back-ups.

Without a doubt, the chaps who make the most money from IP wranglings are lawyers. There was a two-day courtroom battle in mid-January 2003 in NY that pitched rival television networks – CBS and ABC against each other. At stake – the ownership of the format for Reality TV – a genre that is a big hit in the USA. CBS claimed that the ABC show ‘I’m a Celebrity’ was a rip-off of their show ‘Survivor’. The expert witness saw numerous similarities between the programmes – including the fact that both shows had worm-eating challenges. The US District Judge Loretta Preska refused to grant the injunction citing the reason that television programming is “ a continuous evolutionary process involving borrowing frequently from what had gone before”**. The exploitation of formats keeps the money rolling in. The exploitation of IP accounts for 10 per cent of the economy in the USA and nearly 5 per cent of the economy in the UK. As Paul Getty Jr. (who ought to know a thing or two about IP) is reported to have said – IP is the oil of the 21st century.

Drumming up support for communication rights at the World Social Forum, Brazil.

Drumming up support for the World Social Forum in Sao Paolo, Brazil.

Shakespeare may never have written his plays if he had to dole out royalties to all those second rate playwrights whose works inspired his creative genius. And the Disney empire would never have become what it is today if Walt Disney had been prevented from appropriating stories written by Hans Christian Andersen and Rudyard Kipling. Innovation and creation are built on previous innovation and creation. This understanding has been lost on the current drafters of copyright law. There has been a ferocious grab of knowledge during the last two decades. This has led to a creation of enclosures around knowledge and resulted in losses to the public domain. While we lament the loss of bio-diversity, we are not aware that the ideas that make up the cultural heritage of humankind, are being stolen from right under our noses. In the USA, Congress has extended the terms of copyright 11 times during the past 40 years. In fact the 1998 law extended copyright by a further 20 years. Works made for or by corporations are now protected for 95 years. So any thoughts of frying Donald Duck or subverting Mickey Mouse will have to be kept in abeyance for the next two decades.

Did you know that patents are not automatically translated into products by the company that owns the patent? In fact, corporations make a lot of money through the licensing of patents to a third party. IBM for instance, that applied for 2,886 patents in the year 2000, the largest by far by any company in the USA, made $1.7 billion in profits from licensing patents, not bad considering that their total net income in 2000 was $8.1 billion. In Europe, Philips is a major filer and licenser of patents. They filed for 2,100 patents in 2000. BT sits on a mountain of patents – it has amassed 15,000 patents that protect more than 1,700 inventions. The patent licensing market was worth $170 billion in 2002. Why does a company like IBM licence its patents and know how to its competitors? While they make a neat pile of money, licensing helps them establish standards and is a spur to further in-house research. Did someone mention the word ‘altruism’?? You bet.

In late September 2002, five of the world’s biggest music companies – Universal, BMG, EMI, Warner Music and Sony, and three retail chains in the USA – agreed to pay $143 million as settlement for charge of price-fixing by the attorneys of 43 US states. They had conspired with retailers to raise the price of CDs. $63 million from this amount will be used to compensate consumers who overpaid and the companies have also been directed to distribute 5.5 million CDs to schools and non-profit organisations. And these are the very companies currently exploring copy protected CDs that will play on a home stereo but not in a CD-ROM drive. Who said that piracy was the only problem for the music industry!!

Is there anyone out there who has not heard of the life and death of the internet music-swapping company Napster? Napster was accused of ‘online shop-lifting’ by the big five music companies. Napster had offered a free on-line service that enabled subscribers to share their music. Using the MP3 compression format, literally billions of songs were transferred for free. On this peer-to-peer system, at the height of its popularity in the year 2000, there was an estimated 64 million users of Napster. The big five first took fright and then pooled their resources and broke Napster’s use of this disruptive technology. The big five seem to have learned their lessons and now recognise that there is money to be made from digital distribution, and have launched fee-based file downloading services. However, their headache is turning into a migraine as alternative services such as Gnutella, Aimster, Freenet and others provide on-line music swapping services that are not traceable to any given server. If individual artists begin to publish their material over the net, it might make the record labels redundant. That will be the day.

Why is there a need for ordinary people to resist enclosures around knowledge? Precisely because of the patent mania that has reached patently absurd proportions. Take for instance AOL’s award of a patent in December 2002 by the US Patent Office – US6449344, that gives them a monopoly over a system that allows people who are logged on and chatting to friends, to send instant text messages. This system was invented by a group of people at ICQ, a company that had been taken over by AOL. Concerned computer professionals in the USA are now trying to prove the pre-existence of such instant messaging systems prior to the filing of the patent by ICQ in 1996. The World Intellectual Property Organisation (WIPO) reported that it received 104,000 patent applications in 2001. For the 11th consecutive year, US inventors and industry headed the list with 38.5 per cent of all applications. Developing countries accounted for a rather measly 5 per cent!

Unless you are Taiwanese, chances are that you may not have heard of the Taiwanese aboriginal singer Difang. He and his wife Ingay had done a recording entitled ‘Elder’s Drinking Song’ that had been included in a compilation of Taiwanese indigenous music. Without asking their permission, the European pop group Enigma,(remember their Gregorian chants), incorporated Difang’s recording into a 1993 hit, Return to Innocence. Nice title! This song was chosen as one of the theme songs at the 1998 Atlanta Olympics. This unacknowledged borrowing came to the notice of Difang and Ingay. They sued Enigma in the US courts in 1998 and won. Their 1998 hit recording Circle of Life, was a huge hit. Not only did it create a new market for traditional Taiwanese music, it also sounded a bit like Enigma!! Top singer-song-writers, from Paul Simon to Harry Belafonte, have been accused of appropriating songs and riffs without due acknowledgement. The French composers of the hit single Deep Forest, sampled songs from the BaMbuti people from the Ituri people, Zaire – songs that were kept in ethnographic archives – but used commercially without the permission of the BaMbuti. While the company that owns the rights to the Beatles song ‘Let it be’ will receive royalties every time the song is played on radio, TV, and each time the song is bought or performed, indigenous recordings rarely attract royalties.

Indigenous culture has been ripped off by non-indigenous people for years. Indigenous words, texts, motifs, art, weaves, poetry, music, dance steps, spirituality, language, heritage have been freely appropriated and re-represented in different material forms. In fact, they have been turned into jealously guarded intellectual property. GM’s brand the ‘Jeep Cherokee’ comes to mind. Think of such appropriations in your own local context. Are there any examples of ‘prior permission’? Have local groups benefited from royalties that accrue to intellectual property? Why has it been okay to exploit indigenous culture? Because mainstream IPR legislations have not recognised the worth of indigenous knowledge, or the ‘intangible’ means used to communicate these traditions over time. Oral traditions that have not been fixed in a tangible material form have been deemed the property of humankind – to be mined and used by anyone. Indigenous communities have started to fight back. They are trying to get the notion of collective IP rights inherent to ‘customary law’ recognised by mainstream society. See the excellent web site – Our Culture, Our Future: Indigenous Culture & IPRs (www.icip.lawnet.com.au) for a wide-ranging introduction to IPR issues facing indigenous people in Australia.

One of the best documented cases of IP exploitation involved the trafficking of sacred textiles from Coroma, Bolivia. The Quechua Indians who live in Coroma worship bundles of ancient textiles (q’epis) that have been handed down over more than 500 years. These textiles are central to the ceremonial life of the community, embody the souls of their ancestors, and are a form of historical documentation. When local authorities began an inventory of the contents of the q’epis they found that many were missing – and that the losses coincided with the visits made by North American ethnic art and antiquities dealers from around 1978. Through an alliance of local people and networks of anthropologists, archaeologists and textile experts in the USA, dealers of Coroma textiles in the USA have been pursued and, their illegal booty confiscated and repatriated to the people of Coroma.

*Fox, B (2002) ‘Can Software that copies protected DVDs be legal’(p.19), New Scientist, 7 December

** Lamont, D.(2003), ‘Could they be related’(p.10), The Media Guardian, January 20

Compiled from articles carried in the Financial Times, The Guardian, the New Scientist, Cultural Survival Quarterly